Sliding Speech

Do Some People Deserve More Free Speech than Others?

Mari Matsuda, a law professor at Georgetown University in Washington, is an influential advocate of affirmative action, and she is also known for her inventive doctrine, first propounded some years ago, that certain people deserve more free speech than others. She believes that total freedom of speech should belong mainly to the powerless through the generations--those with a history of having been excluded.

These Americans deserving more speech are all members of "outsider" groups--like blacks and women. No matter how affluent an individual black or woman may have become, he or she is owed speech compensation for what happened to their forebears.

The rest of us will have to adjust to limits on our speech. I once asked some of Professor Matsuda's disciples whether the Irish might qualify for first-class speech status. After all, for much of their history here, the Irish have suffered contemptuous discrimination. There used to be signs at rooming houses and restaurants: "No dogs or Irish."

I was told that the male Irish would not qualify for preferential free speech. Neither would male Italians. Even though Mario Cuomo, having excelled in law school and as a clerk on the New York State Court of Appeals, was rejected by a large number of New York law firms. He didn't get one offer. Italians were among the "outsider" groups in the professional job market.

While there are some in the academy who believe in the Matsuda sliding scale of free speech for blacks, other nonwhites, and also women, there has been in recent years a more ruthless form of excluding certain groups. On a number of campuses, blacks and feminists have determined that those whom they disfavor should have no rights to speak in newspapers. Accordingly, when a newspaper has been offensive to blacks or feminists, large numbers of an issue are sometimes stolen and sometimes burned.

At Penn State, for example, many copies of the conservative paper, Lionhearted, were stolen and trashed. It turned out that two feminists had done away with those copies. Both had been journalism majors.

At Boston College, feminists jeered some of the women on the staff of the conservative biweekly, The Observer of Boston College. The mocking critics told the women on the biweekly that since they were conservatives, they had no right to call themselves women. (From no right to speak, there is now no right to be what you are.)

As reported by Thor Halvorssen in The Wall Street Journal, "That night, student vandals stole thousands of copies of The Observer. Two thousand copies were found in a recycling bin, many of them torn in half."

At Amherst, a conservative student paper, The Spectator, offended feminists and gays. The controversial issue was publicly burned. Similar bonfires have taken place at other campuses, including--as I noted last week--Cornell, where 200 copies of the conservative Cornell Review were expropriated. Later, at a rally held by black and Latino students, copies of the paper were burned in a trash basket.

No one involved in the theft and the arson has been penalized by the administration. One excuse by officials is that the Cornell Review is a free paper. But the paper's right to reach its readers and the readers' right to see it were violated. I called the dean of students, John Ford, to find out why. Ford began by telling me that he had no evidence that any copy of the Cornell Review had been burned. "But I have a photograph of papers being burned," I told him. "And I have statements from eyewitnesses."

The dean of students changed the subject. Then he kept repeating, like a mantra, that "Cornell believes in freedom with responsibility, freedom within limits."

I kept asking him, politely, to define "responsibility" and "limits." He just repeated the mantra. "Can you tell me," I tried again, "whether stealing newspapers and burning them are protected at Cornell as being within the definition of freedom within limits and responsibility?"

He never answered.

Then there was the head man at Cornell, president Hunter Rawlings. He issued a statement deploring incivility on both sides. Those protesting the Cornell Review had held a rally that blocked traffic at a busy intersection from 4:30 to 9 p.m., and Rawlings came down against "illegal blocking of public streets." But the main thrust of his pronunciamento was a furious criticism of the Cornell Review for "degrading attacks on Cornell's African American community." The degrading attack was indeed a demeaning parody, which imagined courses that might be offered by the university's Africana Studies and Resource Center, and described them in ebonics. Rawlings further accused the Cornell Review of creating "a climate of hostility" on campus.

So why doesn't stealing and burning a paper, as African Americans did, create "a climate of hostility"? Ah, says the administration, that was simply a symbolic First Amendment protest. But arson is not protected by the First Amendment. Arson is not speech. If Rawlings were a true educator--with some courage--he would have condemned both: the Cornell Review for insulting African Americans and the African Americans for stealing and burning.

Instead, not wanting to be called a racist, he chose a sliding scale for free speech, landing hard on the Cornell Review and only glancingly on those who had committed theft and arson. Blacks, according to Cornell's administration, cannot cope with too much reality, and so must not be held responsible for what they do--as other students would be.